R v Froome [2018] ACTSC 152

Crimes Act 1900 (ACT) ss 32, 34

Crimes (Sentencing) Act 2005 (ACT)

R v Avery [2018] ACTSC 64

R v Musolino [2018] ACTSC 3

SCC 221 of 2017; SCC 222 of 2017

1. On 19 February 2018, the offender pleaded guilty in this court to four offences in full satisfaction of an indictment dated 29 September 2017. The offences and their respective maximum penalties are as follows:

(a) Two offences of unlawful confinement (CC2017/5543; CC2017/5546), contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years' imprisonment.

(b) Two offences of demands accompanied by threats (XO2017/31221; XO2017/31224), contrary to s 32 of the Crimes Act. The maximum penalty for this offence is 10 years' imprisonment.

2. This offender is the third person who has appeared before me for sentence as a result of a series of events that took place on 8 and 9 April 2017. The other two were Kyle Musolino (R v Musolino [2018] ACTSC 3) and Barry Avery (R v Avery [2018] ACTSC 64).

3. In Musolino I described the overall facts as involving "a bunch of thugs confining and beating people up for absolutely no good reason". This offender's conduct fits well into this description.

4. Based on the Statement of Facts, this offender's involvement seems to have been as follows. After agreeing to assist in the recovery of some apparently stolen illegal drugs, the offender sent a threatening message to a Mr Piesley who was suspected of being the thief.

5. Mr Piesley was later detained by a group of offenders and assaulted. This offender took part in the assault. He also took Mr Piesley's telephone and used it to contact the victim's girlfriend.

6. The current offender continued to assault Mr Piesley. He then apparently carried out some acts of kindness towards Mr Piesley, including apologising to him and giving him a tea towel wrapped in ice so that he could address his wounds. Unfortunately, Mr Piesley was later assaulted again. It is not clear if this offender participated in the assault but he was present and did threaten Mr Piesley.

7. The offender was also involved in the detention of another person, Mr Fisher. Mr Fisher was detained in the offender's motor vehicle. The offender placed a bag over Mr Fisher's head and secured it with tape. The offender told Mr Fisher to remove his seat belt and lie down on the back seat. He was threatened by the offender. Mr Fisher was driven to a bushland area where the offender pulled him out of the motor vehicle. The offender struck Mr Fisher's head and then interrogated him about the stolen drugs. Mr Fisher was put back in the vehicle. The offender placed a pair of pliers on Mr Fisher's nose and twisted them with considerable force. He threatened to break Mr Fisher's nose. He then struck Mr Fisher's left leg with the pliers. He threatened to kill him, including by way of pouring methylated spirits on him and burning him. He also threatened to "bash" Mr Fisher's parents.

8. Later, at an address in Mulligans Flat, the offender struck Mr Fisher with a baseball bat. He hit his head, his thigh and the back of his kneecaps. The assault continued for some time. Using an implement that resembled a gun, the offender threatened to shoot Mr Fisher's family. Mr Fisher was placed back in the vehicle and the assaults continued. Mr Fisher was threatened that he must pay $5,000 by 7.00 pm that night or else he and his parents would be bashed.

9. Mr Fisher sustained extensive bruising and swelling to his face, body, arms, hands and legs. The treatment of Mr Fisher can only be described as disgraceful.

10. As a general statement, the offender's involvement in the confinement and assault of Mr Piesley is about the same as the involvement of Mr Musolino. However, his involvement concerning Mr Fisher is significantly more serious.

11. All of the offences are objectively serious, although as just noted the offences against Mr Fisher were the most serious. Although there are no victim impact statements, I have no doubt that the victims were terrified by their ordeal and that the psychological effects have the potential to be long standing. The physical injuries must also be recognised.

12. The offender was born in 1998 in Canberra. He is now 20 years of age. He already has a criminal record. He was actually serving a suspended sentence when these offences occurred. This is an aggravating factor.

13. The offender is one of four children and apparently had a reasonably stable upbringing although he lived with his grandparents between the ages of 10 and 14 because he was not behaving at home. His parents separated when he was 16 and he has no contact with his mother and two of his siblings. He is in regular contact with his father and his grandparents.

14. The offender has a girlfriend who, despite her proper condemnation of his involvement with drugs and alcohol, has continued to support him. She told the authors of the pre-sentence report that her support would continue if the offender remained free of illegal drugs and he stayed away from antisocial colleagues. Her attitude is to be commended.

15. The offender completed Year 10. He would like to go to university when he is released from custody. He seems to be displaying a positive attitude to his future.

16. Unfortunately, the offender has a long history of drug use and he will face a battle in staying away from drugs in the future. Nevertheless, he seems to be making a real effort in this direction. He has also displayed genuine remorse and understanding of the effects his actions had upon the victims. His positive attitude led the authors of the pre-sentence report to suggest an intensive correction order (ICO) as an appropriate sentencing option. They state that this option:

...would assist him in remaining abstinent from illicit drugs and alcohol and achieving some of the goals he highlighted in his post-release plan.

17. I do not think an ICO is a viable option both having regard to the nature of the offences and the time that has already been spent in custody.

18. The offender has been previously diagnosed with depression, anxiety and a drug-induced psychosis. He has been treated as an inpatient for his mental health issues and he currently takes medication to assist these problems.

19. The court alcohol and drug assessment service report states that the offender reported his "mental health has improved greatly while in custody".

20. This offender is yet another example of a young man whose teenage and continuing years have been dictated by illegal drugs which have led him into crime, created or exacerbated mental health problems and left him at a true crossroads in his life. It is heartening that he seems to appreciate that he can have a law-abiding, constructive and fruitful life if he stays away from drugs.

21. These are matters which I must take into account when sentencing him, especially having regard to his age and to the principles and objects of sentencing as set out in the Crimes (Sentencing) Act 2005 (ACT).

23. The offender has been in custody since 18 May 2017. Accordingly, he has already spent a little over a year in prison. The whole of the period, however, cannot be solely attributed to these offences because on 17 January 2018 he was sentenced to a period of eight months' imprisonment, suspended after five months, in the Magistrates Court, for a burglary offence. The period of imprisonment before the suspension takes effect will expire on 16 June 2018.

24. Usually, in approaching a case where an offender has been in custody, the sentences will be backdated to the date that he went into custody. This would not be appropriate here because it would negate the sentence imposed in January of this year for the burglary offence. I also need to take into account the effect of the current offences being committed during the period of the suspended sentence.

25. This case has a great deal of subjective factors which balance and perhaps surpass the negative and aggravating factors which exist. The latter include the offender already having a criminal record, the offences being committed during the suspended sentence and especially the nature of the offences. The Crown submitted that offences of this type, involving confinement of a person, would normally attract sentences in excess of three years' full-time imprisonment.

26. The Crown accepted, however, that sentencing is subjective to each offender. In my view, the powerful subjective factors that exist here entitle this offender to a good deal of leniency. This leniency is encompassed both in the level of discount that I will apply and also to the length of the sentences. The need for rehabilitation of a young man, the remorse that I accept he has shown and his commitment, which I think is genuine, to become a law-abiding citizen are the subjective factors that have most influenced me.

27. In respect of the first two offences, I think parity with Mr Musolino is important, subject to the larger discount. I do not think parity is as relevant in respect of Mr Fisher because this offender's participation in the offences against Mr Fisher was significantly greater.

28. Consistent with the leniency that I think should be applied, but recognising the importance of acknowledging the suspended sentence and the sentence for the burglary, I intend to backdate the current sentences for a period of nine months. This means there will be some degree of overlap but still a recognition that the offender is specifically serving the other sentences.

29. For the offences concerning Mr Piesley, the sentence for both the unlawful confinement and making a demand accompanied by a threat will be 7 months and 10 days, commencing on 30 August 2017. This is after the reduction of 35%.

30. For the offences concerning Mr Fisher, again after the reduction, the sentences for unlawful confinement and making a demand accompanied by a threat will both be 15 months commencing on 30 November 2017.

(a) In respect of Count 1, unlawful confinement (CC2017/5543), the offender is sentenced to 7 months and 10 days' imprisonment commencing on 30 August 2017 and ending on 8 April 2018.

(b) In respect of Count 2, demands accompanied by threats (XO2017/31221), the offender is sentenced to 7 months and 10 days' imprisonment commencing on 30 August 2017 and ending on 8 April 2018.

(c) In respect of Count 6, unlawful confinement (CC2017/5546), the offender is sentenced to 15 months' imprisonment commencing on 30 November 2017 and ending on 28 February 2019.

(d) In respect of Count 7, demands accompanied by threats (XO2017/31224), the offender is sentenced to 15 months' imprisonment commencing on 30 November 2017 and ending on 28 February 2019.

(e) The head sentence is 1 year and 6 months' imprisonment ending on 28 February 2019.

(f) I set a non-parole period of 12 months commencing on 30 August 2017 and ending on 29 August 2018.

(g) The good behaviour order imposed on 17 March 2017 is cancelled.

(h) The offender is to serve the balance of the term of imprisonment, namely 1 month and 3 days, imposed on 17 March 2017.

(i) The term of imprisonment set out in the preceding order is to commence on 30 August 2017 and end on 2 October 2017.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.